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Unaccompanied Minors at Border


A growing number of Unaccompanied Alien Children (UAC) are being detained at the border. While the number of children from Mexico has not changed, the number from El Salvador, Guatemala, and Honduras has increased exponentially. The number of children currently arriving is a number that far exceeds the Federal resources currently allocated for them. Customs and Border Protection has released the most recent numbers at: www.cbp.gov. Per agreements already in place between the U.S. and the contiguous countries of Mexico and Canada, Mexican or Canadian children can be quickly returned to either of those countries. Children from any other country must be turned over to the Office of Refugee Resettlement, a part of the Department of Health and Human Services, pursuant to laws enacted to combat human trafficking under the Homeland Security Act of 2002. Additional related information can be found on the Office’s website at: www.acf.hhs.gov. These children from other countries normally undergo a full immigration court hearing to determine which are legally eligible to stay under laws including a law for special immigrant juveniles, asylum law, as well as other laws that allow persons in need of protection from deportation to remain in the U.S.

The United Nations Office on Drugs and Crime issued a report noting that El Salvador, Guatemala, and Honduras make up 3 of the 5 countries with the highest murder rates in the world. [Report available at: http://www.unodc.org/gsh.] Regarding the current crisis, Senator Robert Menendez of New Jersey commented that: “This is a humanitarian and refugee crisis. It’s being caused in large measure by thousands in Central America who believe it is better to run for their lives and risk dying, than stay and die for sure.”

DACA Under Attack

DACA (Deferred Action for Childhood Arrivals) is a program that allows persons brought to the U.S. before June 16, 2012 to obtain a work card and a 2-year reprieve from being deported. Applicants must have entered the U.S. while under age 16, and have continuously resided in the U.S. for at least 5 full years prior to June 16, 2012. Although the program only applies to persons who arrived prior to 2007, and does not provide a formal legal status, some Congress members assert that the program creates an impression of eventual legalization that has become a magnet for the unaccompanied children entering the U.S. at the southwestern border. Representative Darrell Issa, accompanied by 32 other members of Congress, issued a letter calling for the end of the DACA program and for the persons now in the program to be deported. This letter can be found at: www.issa.house.gov

At the start of the program 2 years ago, there was a broad spectrum of opinion as to whether eligible applicants should make themselves known to the government by applying for deferred action or continue to remain in the shadows. One school of thought considered applying for deferred action status to be a dangerous step, as it could possibly lead to deportation later. Another school of thought considered this to be a huge benefit, as applicants can obtain the right to work lawfully in the U.S., and can obtain other benefits including a state issued driver’s license. Depending on the next steps of the President, and Congress, we will begin to see whether or not DACA is the blessing that many had hoped it would be.

Executive Action in Lieu of Congressional Immigration Reform

Recent pronouncements by the Speaker of the House, including a threat to sue the President, indicate that Congress will not move to complete immigration reform in its current term. After the mid-term elections, the 2016 Presidental campaign will make Congressional action on immigration reform even more unlikely. While solid details have yet to be released, the President may take bold strides in exercising prosecutorial discretion by expanding on the DACA program to include the parents of U.S. citizen children and parents of DACA participants, as well as their siblings who may have been too old to participate in the original program. In addition, through a legal mechanism called “parole in place,” he may waive the application of the 3 and 10 year bars that prevent persons unlawfully present in the U.S. from completing lawful processes to normalize their status while remaining in the U.S. Some commentators have even suggested that he may reinterpret how the green card quotas are administered by only counting the principal applicants, and not the derivative beneficiaries, which are limited to children under 21 and spouses. This last “fix” would greatly benefit employer sponsored immigrants from India and China, many of whom wait in green card quota lines that exceed 10 years.

U.S. Consulates in Canada Suspend Third Country National Processing for Summer

It can be a very long plane ride to travel to Australia, Asia, or Africa. Some visa applicants find it more convenient to obtain a visa stamp in Canada or Mexico than to return to their home country. This is called TCN (Third Country National) processing, because the applicants are not citizens of the country where the visa application is submitted. The U.S. consulates in Canada have suspended the ability of non-Canadian citizens to apply for visas at those posts this summer, although it is hoped that this option may return in the fall. TCN processing remains an option for some posts in Mexico. The most appropriate place to apply remains the jurisdiction covering the country that issued the applicant’s passport. Applicants applying at other posts should keep in mind that the reviewing post always retains the authority to refuse to accept the visa stamp application, and to require the applicant to apply in his or her home country instead. Also, it is important to keep in mind that consulates are often more comfortable in extending a visa stamp for a category previously issued to the applicant, than to grant a first time issuance in a category new to the applicant, especially when the applicant has changed to a new status after initially entering the U.S. in a different category. Also, “administrative processing” delays can make the visa process take a few weeks to complete, and most persons are more comfortable spending a few weeks at home than in a foreign country.

The announcement from the Canadian based U.S. consulates can be found at: www.usvisa-info.com.

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Attorney Robert Nadalin is a highly qualified and dedicated California Immigration Lawyer who can help you in your time of need. Learn more about your legal options during an honest consultation in San Diego, CA.